Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698939359857.pdf (South Africa)
REPORT OF THE STANDING COMMITTEE ON QUALITY OF LIFE & STATUS OF WOMEN, YOUTH AND PEOPLE WITH DISABILITY AND THE PORTFOLIO COMMITTEE ON SOCIAL DVELOPMENT ON CHILDREN’S AMENDMENT BILL [B18B-2020] 1.

INTRODUCTION The Children’s Amendment Bill [B18B-2020] was introduced to the Legislature of Limpopo from the National Council of Provinces (NCOP).
Subsequently, Limpopo Legislature referred the above-mentioned Bill to the Standing Committee on Quality of Life, Status of Women, Youth, Children, and People with Disabilities for consideration and conferral of mandates to NCOP Permanent Delegates.

2.
PURPOSE OF THE BILL To amend the Children’s Act, 2005, so as to amend and insert certain deﬁnitions; to provide for children’s right to privacy and protection of information; to further provide for the rights of unmarried fathers; to extend the children’s court jurisdiction; to further provide for funding of early childhood development programmes; to provide for the designation and functions for a Registrar of the National Child Protection Register; to further provide for the care of abandoned or orphaned children and additional matters that may be regulated; to further provide for rules relating to care and protection proceedings; to further provide for medical testing of children in need of care and protection or adoption; to provide for additional matters relating to children in alternative care; to further provide for matters relating to adoption and inter-country adoption; to provide for the hearing of child abduction matters; to further provide for matters relating to surrogate motherhood; and to provide for matters connected therewith.
1 3.

CONSIDERATION OF THE BILL The Standing Committee on Quality of Life, Status of Women and People with Disability invited the Portfolio Committee on Social Development to jointly consider the Children’s Amendment Bill.

The NCOP delegate together with the officials from the Department of Social Department briefed both Committees on the principles and objects of the Bill in a meeting that was held on 20 September 2022.
Both Committees resolved in that meeting to conduct public consultation process in the form of public hearing where relevant stakeholders from all the five districts of the province should participate and submit their inputs on the bill.

A decision was taken that public hearings will be conducted on 13 October 2022 for Vhembe and Mopani districts stakeholders, 19 October 2022 for Capricorn and Sekhukhune districts stakeholders and 21 October 2022 for Waterberg District.
Public hearings were duly held as aforementioned and inputs were solicited as follows:- 4.

INPUTES BY THE STAKEHOLDERS Amendment of clause 1 section 1 of the Children’s Act 38 of 2005 Cause 1 Section 1(a) By the substitution for the definition of abandoned child Stakeholders suggest that the word abandoned be removed in the Bill and replaced with children who are in need because it is insensitive.
Clause 1 Section 1(c) By the substitution for the definition of orphan child Stakeholders suggest that the word orphan be removed in the Bill and replaced with children who are in need because it is insensitive.

Clause 1 Section 1(a) (b) states that for no apparent reason, had no contact with the parent, guardian or the care giver for a period of at least three months.
There was a concern that three 2 months was too long in a case where the parents, guardian or care giver’s whereabouts can be ascertained in a month time.

It was recommended that the process should be made to speed up the process than waiting.

4.1.1.
4.1.1.

Amendment of clause 2 section 24 of the Act 38 of 2005 Clause 2 Sections 24(1) and 45 (3A) - Guardianship applications by family members Clause 2 Section 24(1) which stipulates that “Any person having an interest in the care, wellbeing and development of a child may apply to the High Court or children’s court for an order granting guardianship of the child”.
The stakeholders indicated that under the Children’s Act, family members would have to bring an application to the High Court, which costs money because they will need to travel far and have an attorney or advocate who can appear in the High Court.

It would be much closer and less costly if they could go to the children’s court, which is in the local magistrates’ court.

4.1.2.
4.1.2.

Amendment of clause 3 section 45 of Act 38 of 2005 Clause 3 Section 45(c) (jA) which stipulates that “an unaccompanied or separated migrant child or a child who is an asylum seeker or refugee as contemplated in a refugee in the Refugee Act, 1998 (Act No.

130 of 1998)”.

The stakeholder’s view was that the clause be removed completely in the Bill.

They should be placed at the Place of Safety and let the Department of Home Affirms deal with extradition.
Clause 3 Section 45(d) subsection (2) which stipulated that “children’s court must refer any criminal matter arising from the non-compliance with an order of such a court or charge relating to any offence contemplated in section 305 to a criminal having jurisdiction”.

The stakeholders agreed with the cause.

3 4.1.3.


Sections 24(1), 45 (1) and 45 (3) - Guardianship applications by family members Clause 2 section 24 (1), Clause 3 section 45 (1) and clause 3 section 45 (3)- Guardianship is important because there are certain things that guardians (rather than caregivers) must decide on or agree to on behalf of a child.

Mothers of children are guardians, married fathers are guardians, and some unmarried fathers are guardians.
In South Africa we have many children living with family members by family arrangement or due to being placed in foster care – but their caregivers or foster parents are not legal guardians.

Stakeholders were pleased to see that the Amendment Bill [B18B of 2020], proposes amendments to enable the children’s court to hear guardianship applications.

Stakeholder therefore support the proposed the amendments to sections 24(1); 45 (1) & 45(3).

4.1.4.
4.1.4.

Amendment of clause 6 section 150 of Act 38 of 2005, as amended by section 5 of Act 17 of 2016.

Clause 6 section 150 (1) (a) it was suggested that the sentence “does not have the ability to support himself or herself and such inability is readily apparent” be removed.

Section 150(1)(a) should read as “has been abandoned or orphaned and is not in the care of a family member as defined in section 1.

4.1.5.
4.1.5.

Amendment of clause 8 section 156 of Act 38 of 2005, as amended by section 9 of Act 41 of 2007 Clause 8 section 156 (1) provides a range of orders that the children’s court can make after it has found a child to be in need of care and protection.

Sub-section (4) provides that if a court finds that a child is not in need of care and protection, it may also issue an order referred to in subsection (1), except for a ‘placement’ order.
4 The bill proposes the following insertion to subsection (1), (cA) that the child be placed in the care of a parent or family member, if the court finds that such person is a suitable person to provide for the safety and well-being of the child; Because this is a ‘placement’ order, this option will only be available to the court if the court has found the child to be in need of care and protection.
The inclusion of this option is supported as it will formalize the practice of informally placing children with other family members after their parent or caregiver has been found to have abused, neglected or exploited them.

Formalizing the practice ensures that the case is logged on the system and the child and family receives re- unification services and supervision.
Informal placements with family members in cases where a biological parent has abused or neglected child, can put the child at risk as there is nothing stopping the child from returning to the abusive parent or the abusive parent from removing the child from the family member’s care.
It must however be noted that if the child has been orphaned or abandoned and is already in the de-facto care of a family member, the court will not be able to ‘place’ the child in that caregiver’s care using s156(1) (cA) because in these cases the court will not be able to find the child to be in need of care and protection [due to the amendment to s150(1) (a) in the Amendment Bill].
The stakeholder suggested that If the intention behind the insertion of sub-section (cA) was to cater for the need to formalize the care arrangements of orphaned or abandoned children living with family members, it would be better to make an amendment to s46 (1), which deals with all the orders a children’s court may make, not just the protection orders, and phrase it as follows: Recommended amendment: 46.
(1) A children’s court may make the following orders: (aA) an order confirming or granting parental responsibilities and rights in terms of s21, 23 or s24 to a parent or family member caring for a child 4.1.6.

Amendment of clause 9 section 157 of Act 38 of 2005 Clause 9 section 157 (c) (ii) of the principal Act which is amended in terms of subsection Ii which include the words ‘limited period to allow for reunification of the child and the parent, guardian or 5 care giver’.
Stakeholders were of the view that ‘limited period’ is vague and must be replace by the words ‘reasonable period’ to allow for an explanation where an extension would be necessary.

Clause 9 section 157 (e) of the principal Act bill which is amended to stipulate that “a child who is three years of age or less who has been orphaned or abandoned must be made available for adoption”.

The public was of the view that the period of three years or less has an element of discrimination against older children.
It was indicated that the difficulty might happened in case of older children, the period has to be extended to at least school going age of around 6 years.

A 6-year child is still an infant and his or her adoption could not be treated like a child of above 10 years whose views need to be considered when his or her interest are to be dealt with.

4.1.7.
4.1.7.

Amendment of clause 10 section 159 of Act 38 of 2005, as amended by section of Act 41 of 2007 Section 159 - Duration of alternative care orders Clause 10 section159 (1) and (2) , the Act currently provides that alternative care orders (which included foster care orders) can be made for a maximum period of two years and that the court can extend them for a further years at a time after a social work report and review hearing by the court.
Because there are a high number of children in the foster care system compared to the low number of social workers - the legal requirement of two-yearly social worker reports and court reviews of all children in foster care cannot be implemented.

This is why Department of Social Development has been chasing an unsolvable backlog for ten years.

This in essence is the foster care crisis.


This has necessitated the five High Court orders (2011, 2014, 2017, 2019, 2020) aimed at preventing these children’s grants from lapsing.

There are three options to solve the crisis: (1) reduce the number of children in the foster care system by designing an alternative system of providing social grants to the children who do not need social workers or courts to intervene in their care arrangement.
(2) double the number of social workers; or 6 (3) change the foster care system from a system for children in need of alternative care, to a system for children in extended family care.

Option 1 is being given effect to by the combination of the CSG Top-Up and the amendment to section 150 (1) (a) above.
Option 2 has been pursued by Department of Social Development for the past ten years but increased social workers has not reduced the backlog, further increases in social workers is not economically feasible, and using this scarce resource to chase paperwork is not the best use of social workers’ time.

Option 3 is being partially put into effect via the amendments to section 159 (2A) and section 186 (3).
DSD should be choosing between these three options, instead of pursuing all three as they essentially contradict one another.

This is another indication of where a strategic decision has not been made at the level of the Minister, Director General or Deputy Director Generals.

Clause 10 section 159 (2A) Section 159 (2A) is aimed at allowing alternative care court orders to expire after two years and then bringing them to the court for extension after they have expired.
It is recognizing that DSD cannot implement the 2-yearly extension requirement due to capacity constraints and DSD therefore wants to make it clear to Magistrates that they have the authority to extend an expired order.
While aimed at providing a quick solution to the foster care extension backlog, this ‘solution’ will negatively affect a number of other children who are in dire need of the two -yearly review process:  the 16 000 children in child and youth care centres,  an unknown number of children in temporary safe care and  50 000 to 100 000 children in foster care due to being removed from their biological parents.
The two-yearly court review required by section 159 (1) & (2) is aimed at ensuring that social workers and courts are working on family re-unification or permanency care plans for the children.

This is because they have been removed from their parents due to abuse, neglect or exploitation, 7 or have been abandoned or orphaned and are not in the care of a family member.

Regular periodic review is an international requirement for children in alternative care.
This is because alternative care should be a temporary placement pending family re-unification, and the review process is aimed at holding social workers accountable for doing family re-unification work and stabilizing the child’s care plan.

If the law allows alternative care orders to lapse with no consequences for those responsible for reviewing and extending them, there is a substantial risk this will become standard practice which means the majority of alternative care orders could run over 2 years.
As there is no time limit imposed by the amendment, an alternative care order could be many years overdue for extension before it receives attention.

Behind these alternative care orders are very vulnerable children who need a social worker to work their case and ensure they can either be re-unified with their family of origin, put up for adoption or their care planned otherwise adapted to ensure permanency and stability.
However, two yearly periodic review is not necessary if the children are already in family care and there is no prospect of them being re-unified with their biological parents due to them being deceased or having disappeared.

This is the case for approximately 200 000 of the orphaned and abandoned children currently in foster care with extended family, and the other 500 000 not yet in the system.
We therefore recommend that the amendments proposed to s159 (2A) should be clearly restricted to cases of orphaned or abandoned children in foster care with family members.

This relaxation to the s159 process should not be allowed if the case involves an abused or neglected child who has been removed from their parents and placed with a foster parent (whether or not related) or placed in a child and youth care centre.
A further concern is that the amendment to s159 (2A) will not ensure that children with expired foster care orders continue to receive their FCGs.

All it will do is take the pressure of social workers and remove the backlog from the public eye.

As soon as the SASSA database recognizes that the court expiry date has been reached, it will terminate the FCG – because this is what the Social Assistance Act and SASSA audit requirements prescribe.
If the expired order is later extended, SASSA could provide the child and family with backpay for the period they had to endure without their FCG.

However, that period could be a year or more because there is no time limit set in section 159 (2A) for how long a foster care order can be expired for.

This ‘solution’ therefore does not protect children and families from losing their social grants for considerably long periods of time.

8 We therefore do not support section 159 (2A).


We recommend that it should be removed.

In the alternative, we recommend that it be amended to: (a) restrict its use to cases of orphaned or abandoned children in the foster care of relatives; and (b) restrict its use to cases where the order expired within the last 3 months.

This will minimize the time period that foster children will have to survive without a social grant.
Proposed amendment: (Replace with this wording) Clause 10 section 159 (2A) In relation to orphaned or abandoned children placed in foster care with a family member, a court may: (a) make an interim extension of an order for a period not exceeding six months, if such an extension is required to ensure the continued receipt of a foster child grant by the child and foster parent concerned; or (b) extend an order that has expired within the past 3 months, on good cause shown, and if such an extension will be in the best interests of the child.
(c) Clause 10 section 159 (2B) - Protecting children already in foster care from losing their FCGs (d) Once this bill becomes an Act, approximately 200 000 orphaned or abandoned children who are already in foster care with family members are at risk of losing their foster care orders and consequently their FCGs.

This is because when their case comes back to the court for review in terms of section 159, the children’s court will review their case against the criteria specified in section 150(1) (a).
Because section 150 (1) (a) is being amended to exclude new applications for foster care by family members caring for orphaned or abandoned children, it could be interpreted by magistrates to mean that existing foster care placements of orphans with family members must be terminated.

This needs to be explicitly prevented as it will constitute regressive action for the children and families already in receipt of the FCG.

We therefore support the amendment proposed in section 159(2B) 9 4.1.8.
Amendment of clause 13 section 185 of Act 38 of 2005, as inserted by section 10 of Act 41 of 2007 Clause 13 Section 13 of the bill in respect of section 185 of the principal Act, in particular the submission for subsection 2.

The substitution of the word ‘More’ with the words ‘not more than’ 6 children may be placed in foster care with a single person or two persons sharing a common household is problematic for ‘African' family children.

The words ‘not more than’ has an element of separating of siblings.
Siblings’ bond needs to be prioritized and respected.

According to a suggestion from research by McNama, 1990, separating siblings may make it difficult for the siblings to begin a healing process, make attachments and develop a healthy self-image.

Disregarding African customs would be unconstitutional as our Constitution says that any law and or practice that does not consider our cultural or traditional way of living would be invalid.

4.1.9.
4.1.9.

Amendment of clause 14 section 186 of Act 38 of 2005, as inserted by section 10 of Act 41 of 2007 The stakeholders suggested that if section 159 reviewed more than once, then the foster care placement can be permanently placed in terms of section 186.

The emphasis was on intensive supervision by social workers.
It was further suggested that in case a foster care parent die or relocate or no longer willing to stay with the child during permanent placement, therefore foster care cases be transferred in terms of section 171 of the principal Act.

Stakeholders were very concern that the implementors of the Bill were social workers and there was shortage in this regard.

It was recommended that more social workers be recruited for the realization of the care of the children.
Clause 14 Section 186 of the principal Act, clause 14, it relates to the placement of child in foster care with a family and order that the foster care placement subsists until the child turns 18 years.

This clause is problematic in case of migrant and asylum seeker children who are undocumented 10 and attend school.

The bill is silent about such children applying for birth certificates which is required when the children register for grade 12 examinations.
Without the certificate the children would be treated differently from other children.

It was recommended that the registration of these category of children be resolved in the amendment.
As highlighted in a negotiating mandate that was forwarded to NCOP, inputs were solicited from both the Standing Committee on Quality of Life, Status of Women and People with Disability and the Portfolio Committee on Social Development including following stakeholders: Faith-Based-Organizations, Community-Based-Organizations, Drop-In-Centres, Early Childhood Centres, South African Police Services, Moral Regeneration, Social Services Practitioners, Mr. Mbonisi Nyathi - Children’s Institute (University of Cape Town), Centre for Child Law, Children in Distress – CINDI, Advocate Shirhami Shirinda, Hosi Bungeni Advisory Council, Bungeni Community, KOTI Research and Land Rights Services.
5.

RECOMMENDATIONS The Standing Committee on Quality of Life, Status of Women, Youth, Children, and People with Disabilities and the Committee on Portfolio Committee on Social Development acknowledged receipt of the minutes from the Select Committee on Health and Social Services.
Having considered the Bill and taken into consideration the input and views of the stakeholders, both Committees hereby recommend to the House to confer a mandate to NCOP delegates to vote in favor of the Bill with above amendments to pass into law.

_______________________________________________________________ HON.

M.A.

MOKABA CHAIRPERSON: STANDING COMMITTEE ON QUALITY OF LIFE & STATUS OF WOMEN, YOUTH AND PEOPLE WITH DISABILITY 11 ____________________________________________________________ HON.

L.J.
L.J.

MATLOU CHAIRPERSON: PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT 12